supreme court of the united states · 2017. 11. 22. · supreme court of the united states in the...

- - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - -

SUPREME COURT OF THE UNITED STATES

IN THE SUPREME COURT OF THE UNITED STATES

DAVID PATCHAK, )

Petitioner, )

v. ) No. 16-498

RYAN ZINKE, SECRETARY OF THE )

INTERIOR, ET AL., )

Respondents. )

Pages: 1 through 75

Place: Washington, D.C.

Date: November 7, 2017

HERITAGE REPORTING CORPORATION Official Reporters

1220 L Street, N.W., Suite 206 Washington, D.C. 20005

(202) 628-4888www.hrccourtreporters.com

http:www.hrccourtreporters.com

1

2 - - - - - - - - - - - - - - - - - -

3

4

5

6

7

8

9 - - - - - - - - - - - - - - - - - -

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Official

1

IN THE SUPREME COURT OF THE UNITED STATES

DAVID PATCHAK, )

Petitioner, )

v. ) No. 16-498

RYAN ZINKE, SECRETARY OF THE )

INTERIOR, ET AL., )

Respondents. )

Washington, D.C.

Tuesday, November 7, 2017

The above-entitled matter came on for oral

argument before the Supreme Court of the United States

at 10:03 a.m.

APPEARANCES:

SCOTT E. GANT, Washington, D.C.; on

behalf of the Petitioner

ANN O'CONNELL, Assistant to the Solicitor General,

Department of Justice, Washington, D.C.; on

behalf of the Federal Respondents

PRATIK A. SHAH, Washington, D.C.; on

behalf of the Match-E-Be-Nash-She-Wish Band

of Pottawatomi Indians Respondent

Heritage Reporting Corporation

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2

Official

C O N T E N T S

ORAL ARGUMENT OF: PAGE:

SCOTT E. GANT

On behalf of the Petitioner 3

ORAL ARGUMENT OF:

ANN O'CONNELL

On behalf of the Federal Respondents 34

ORAL ARGUMENT OF:

PRATIK A. SHAH 57

On behalf of the Match-E-Be-Nash

She-Wish Band of Pottawatomi Indians

Respondent

REBUTTAL ARGUMENT OF:

SCOTT E. GANT

On behalf of the Petitioner 71


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

3

Official

P R O C E E D I N G S

(10:03 a.m.)

CHIEF JUSTICE ROBERTS: We'll hear

argument this morning in Case 16-498, Patchak

versus Zinke.

Mr. Gant.

ORAL ARGUMENT OF SCOTT E. GANT

ON BEHALF OF THE PETITIONER

MR. GANT: Mr. Chief Justice, and may

it please the Court:

Section 2(b) of the Gun Lake Act is

unconstitutional because it is incompatible

with several well-established strands of this

Court's separation-of-powers jurisprudence as

well as with Article III itself. With Section

2(b), Congress directed the federal courts to

dismiss a pending case otherwise properly

before the courts.

As a consequence of that directive to

dismiss with respect to Mr. Patchak's case, the

courts were prevented from performing their

constitutionally assigned responsibilities to

decide cases before them and to say what the

law is in the context of deciding those cases.

Section 2(b) is precisely the kind of


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

4

Official

legislative review of judicial decisions that

the framers rejected when they designed the

Constitution. And all of -

JUSTICE KAGAN: Mr. Gant, when -- when

you say "directed that a case shall be

dismissed," are you referring only to the last

few words of this statute or are you referring

more broadly?

MR. GANT: I'm referring to the -- to

the last -- the words that refer to dismissal

itself.

JUSTICE KAGAN: Right. "And shall be

promptly dismissed."

MR. GANT: Yes. And then -

JUSTICE KAGAN: Are you suggesting

that if those five words were not in the

statute, that the case would come out

differently?

MR. GANT: I -- I am not suggesting

that. I think it would still have come out

differently; for example, if you dropped the

reference to dismissal but left "maintain," the

result would be the same. The same would be

true if there had been a removal of judicial

review.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

5

Official

JUSTICE KENNEDY: In other words, if

two -- if the -- if the statute had contained

just 2(a) but not 2(b), same result?

MR. GANT: No. That -- I understand

that to be a different question from Justice

Kagan's. If 2(a) were -- were the only part of

the statute, we had no 2(b) -- 2(c) is not at

issue here. So, if we had 2(a) only, we

wouldn't be here arguing that there was a

separation-of-powers violation.

Part of the problem here -

JUSTICE KAGAN: But -- but if you had

2(b), finished, just "shall not be filed or

maintained in a Federal court," full stop,

you're saying that would be the same statute as

the one we actually have?

MR. GANT: It -- it would still be

unconstitutional.

JUSTICE KAGAN: Yeah.

MR. GANT: Now, the -- the omission of

the "shall be dismissed" language is not

without significance. And if I may, I'd like

to explain.

The direction to dismiss is a

quintessential judicial function. It's not


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

Official

surprising that Black's Dictionary, in defining

dismissal, refers to it as especially a judge's

decision to stop the case.

That's -

JUSTICE GINSBURG: Well, what do you

do with the McCardle case?

MR. GANT: McCardle was -- the fact

that a statute strips jurisdiction from a court

doesn't mean that it's immunized from review

under separation of powers. So the -- the

touchstone has to be and the relevant strands

of the separation-of-powers jurisprudence at

issue here are -- are really two parts.

One is, has Congress exercised the

judicial power and/or has Congress prevented

the courts from fulfilling its constitutionally

assigned responsibilities? I submit that both

have occurred here as a result of what is in

the actual 2(b), but the same result would

arise if you omitted just the words "shall be

dismissed."

JUSTICE GORSUCH: But, Mr. -

JUSTICE ALITO: If this is a -- just a

jurisdiction-stripping statute, could you just

say as succinctly as possible what the rule is


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

7

Official

that you would like us to adopt? What is the

-- the separation-of-powers rule that you would

like us to adopt with respect to a purely

jurisdiction-stripping statute?

MR. GANT: Well, I -- I want to be

directly responsive to your question, but I

also want to say, and I've -- I've made this

observation in the briefs, I think the better

view is that it is not jurisdictional, and I'm

happy to elaborate on that later. But if we

assume that it's a jurisdiction-stripping

statute -

JUSTICE ALITO: Well, on that,

suppose, following up on the initial questions,

if all that 2(b) said was that an action

relating to this land shall not be maintained

in a federal court, would you say that is not a


MR. GANT: That --- that certainly

looks more like a jurisdiction-stripping

statute. The reason I say that it's -- the

better view is it's not jurisdictional is -- is

at least twofold.

One is -- and I -- I have been accused

by some colleagues of taking Arbaugh too


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

8

Official

seriously, but this Court went out of its way

in Arbaugh to announce to the world and to

Congress in particular that it wanted a new

rule, that if a court wanted a statute to be

viewed as jurisdictional, you needed to clearly

say so.

This statute doesn't say anywhere in

its text, in its headings, that it's

jurisdictional. In fact, 2(b), the section

we're discussing that -- that arguably strips

jurisdiction from the courts, uses the phrase

"no claims."

My research may have been faulty, but

I couldn't find a single case using that

language in framing a jurisdictional statute.

JUSTICE ALITO: Well, if one of the

things that 2(b) does is to strip jurisdiction,

and if "shall not" -- "shall not be maintained"

is a jurisdiction-stripping provision, then I

don't see how you can win unless you have a

rule that applies to a jurisdiction-stripping

statute. Maybe there are other things in this

statute that are vulnerable, so they could be

severed.

So, to go back to the question I


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

9

Official

asked, if this is a statute that takes away

federal court jurisdiction, what is your

separation-of-powers rule?

MR. GANT: The rule -- the rule, I

submit, the Court should adopt is if a statute

is properly -- deemed as properly -- is

properly construed as a jurisdiction-stripping

statute, it is still subject to

separation-of-powers analysis. That -- that

much is clear from Klein. However, whatever

else about the case might be puzzling, Klein

clearly establishes that the mere fact that

Congress affixes the label "jurisdiction" to a

statute doesn't immunize it.

So then we return to our touchstone

principles here. Has, through this

jurisdiction statute, Congress exercised the

judicial power and/or has it prevented the

courts from fulfilling their constitutionally

assigned responsibilities?

JUSTICE ALITO: Yeah, but when -- as

succinctly as you can, Congress violates the

separation of powers when it deprives the

federal courts of jurisdiction in this

circumstance. And what is the circumstance?


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

10

Official

MR. GANT: The circumstance is when it

is directly, overtly deciding a case or

effectively deciding a case, rather than making

new law and leaving it to the courts to apply

the new law -

JUSTICE GINSBURG: Well, let's -

let's take -- which is not fictional, suppose

Congress enacts a statute that says a federal

court shall not have jurisdiction over cases

involving prayer in school. It's

constitutional?

MR. GANT: I think that raises serious

but -- but somewhat different questions. Part

of what's offensive here to the

separation-of-powers principles is that

Congress is directing the outcome in a case.

It could be a set of cases.

And I submit, by the way, look -

looking to Bank Markazi, if there had been

1,000 cases just like Patchak's, I think the

outcome would be the same. So the fact that it

was one case is, I think, probative of

assessing whether or not the Congress is

actually deciding a case, rather than actually

making the law to be applied by the courts.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

11

Official

JUSTICE KAGAN: Well, if that's so, I

mean, I thought that you were suggesting a rule

that said, well, when you direct one case,

that's unconstitutional, but now you've just

said you're not saying that.

So, again, coming back to Justice

Alito's question, I mean, we know that Congress

can alter the jurisdiction of the federal

courts. And we know that Congress can alter

that jurisdiction and apply it to pending

cases. We've said that over and over again.

So what makes -- what would make this

unconstitutional if we assumed that this is a


MR. GANT: Because what Congress has

done is affect directly here, but it could be

indirectly -- dictated the outcome of the case

without changing the law.

JUSTICE GORSUCH: So, Mr. Gant, it's

that last clause -

JUSTICE KAGAN: Well, the law is the

jurisdictional law. That's what Congress is

changing. Congress is changing jurisdiction.

In so doing, Congress is changing the law. We

haven't said Congress has to change, you know,


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

12

Official

substantive law.

Here Congress is changing

jurisdictional law. It's saying, you know,

yesterday you had jurisdiction over a certain

category of cases. Today you don't.

Now, why is that unconstitutional or

when is that unconstitutional?

MR. GANT: That is unconstitutional

when in the -- under the guise of -- of

changing the rules with respect to

jurisdiction, the court is effectively deciding

the case and then not letting the courts apply

the new law either.

So both things have occurred here.

So, in Bank Markazi and in Robertson, the

reason why those survive separation-of-powers

scrutiny was because they changed the law and

they left it to the courts to apply to new

cases. You have the exact opposite here.

JUSTICE GORSUCH: So, Mr. Gant, if I

understand it, the answer to the question, I

think, is that last clause, the dismiss -

ordering the courts to dismiss the claim, that

up to that point, "shall not be filed or

maintained," if that's jurisdictional, as I


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19 --

20

21

22

23

24

25

13

Official

understand, you and your amici are okay with

that. It's the directing the dismissal.

But if that -- if that's the only beef

we have, is that really a beef at all because

that's a natural consequence of a

jurisdiction-stripping statute as McCardle

itself, as Justice Ginsburg pointed out, right,

so there's nothing left. I think it's almost a

virtual quote from McCardle, right, there's

nothing left to be done but dismiss. So where

is the real beef here?

MR. GANT: Justice Gorsuch, I think

what the -- collectively, what the Court's

cases instruct us is that we shouldn't stop the

inquiry at the label.

We know that from Klein. We know that

from other cases. So this case isn't framed as

jurisdictional, but if -- if we assume that the

JUSTICE GORSUCH: Assume -- assuming

it's jurisdictional and all you're left with is

this complaint about the last clause, why

should we care?

MR. GANT: We should care because then

what Congress is doing is it's -- it's giving


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

14

Official

carte blanche to dictate the outcome of cases

just by affixing the label jurisdictional.

JUSTICE GINSBURG: I -- I thought you,

in your response to Justice Kagan, you said it

wouldn't make any difference if those last

words were omitted, "shall be dismissed."

MR. GANT: Right.

JUSTICE GINSBURG: You -- would have

the same objection.

MR. GANT: I would have the same

objection -- let me be clear there. With

respect to pending cases, so there -- the two

words that are operative here with respect to

pending cases are "shall not be maintained" and

"shall be dismissed." I'm not talking about

the "filed."

So, with respect to prospective cases,

we're not arguing that Section 2(b) would be

unconstitutional because it wouldn't implicate

the -- the strands of the separation-of-powers

jurisprudence that I was discussing.

So it's with respect to pending cases

where both the shall not be -- may not be

maintained and shall be dismissed are both

operative -


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15

Official

JUSTICE KAGAN: I don't think that's

the question, Mr. Gant. I think the question

is, and this was what I started with, would you

be making the same constitutional argument if

the last five words were not there? And I took

you to say, yes, you would be making the same

constitutional argument, and in so doing, you

separated yourself from your amici because I

understand your amici, as Justice Gorsuch does,

as saying that everything hangs on that last

five words.

And you're suggesting that not

everything hangs on that last five words, that

you would have the exact same constitutional

objections if those five words weren't in the

picture. Do I have you right?

MR. GANT: Yes. I think the fact that

it includes the dismissal term is -- makes it

particularly pernicious, so I would say that's

additional, pushing it even further beyond.

JUSTICE KAGAN: It's like bad

atmospherics?

MR. GANT: Well, it -- but it -- but

it's not just atmospherics. As I -- as I

suggested earlier, I think there's an argument


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

16

Official

to be made that a direction from Congress to

the courts to dismiss a case is telling the

courts how to perform their duties in an

impermissible way. And I also -

JUSTICE SOTOMAYOR: Counselor -

JUSTICE KAGAN: But then you do get,

again, and I think that this is the underlying

premise of Justice Gorsuch's question, so take

out the last five words, and you were trying to

explain why what then just seems a

jurisdiction-stripping statute is

unconstitutional, in that -- against the

backdrop of very consistent precedent that we

have that says that Congress can take away the

jurisdiction of the federal courts and can do

so in a way that affects pending cases.

And -- and so why and when is that

unconstitutional?

MR. GANT: Because you have to pierce

the label of jurisdiction and return to the

basic principles, which are: is Congress

exercising judicial functions or is it

preventing the judiciary from carrying out its

actions?

CHIEF JUSTICE ROBERTS: It seems that


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

17

Official

we -- we've been replicating what, among

lawyers anyway, is a famous dialogue between

Professors Wechsler and Hart about whether

Congress can achieve unconstitutional

objectives by preventing federal courts from

adjudicating claims that those provisions are

unconstitutional.

You know, during the civil rights era,

there were a lot of proposals in Congress that

said the federal courts have no jurisdiction

over any case in which busing is sought as a

remedy. And those types of proposals are

consistently submitted whenever Congress

attempts to achieve an unconstitutional result

by depriving the federal courts of

jurisdiction.

So I would have thought your answer is

-- is -- I would have thought you would have

taken the position that I understand to be

ascribed to Professor Hart in the dialogue,

which is that that is an indirect way of

achieving an unconstitutional result and is

subject to the same objection.

MR. GANT: That -- that is my

position. And I -


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

18

Official

JUSTICE SOTOMAYOR: Counselor, can I

-- I want to switch from personal jurisdiction

to sovereign immunity, in part for the reasons

that the Chief is -- Chief Justice is talking

about. Okay?

MR. GANT: Yes.

JUSTICE SOTOMAYOR: In Patchak I, I

took the position that the Court got sovereign

immunity wrong, and basically I argued -- the

majority disagreed -- that -- that the Quiet

Title Act really granted immunity. And the

majority disagreed and said this had to do with

APA waiver of immunity.

I look at statutory history and this

new act, the Reaffirmation Act, was in the

context of that dispute in that case. And what

Congress did was settle the question, which I

believe it's entitled to do and is not

unconstitutional, it ratified the acts of the

Secretary's taking of this land, and by that

act, implicated the Quiet Title Act.

And so, if it did that, I see this -

and I don't understand why it's not, that

waiver of sovereign immunity that the Court did

not recognize in Patchak I.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

19

Official

And I raise this for two reasons:

One, I do think there's a difference between

the Congress coming in between two private

parties and directing a result in favor of one

private party. I think that's a quintessential

separation-of-powers question and a very, very

serious one.

But I think there is something

fundamentally different about suits involving

the government because sovereign immunity -- or

any suit against the government is a matter

only of largesse and -- and the government's

voluntary choice.

We have repeatedly through the

centuries said the government can at any moment

take away its sovereign immunity. It can take

away that niceness of giving you the immunity.

So I see the potential of less of a

problem with separation of powers if -- if the

government has withdrawn sovereign immunity

than it directing the outcome between private

parties. I would be really frightened if we

let the government do that.

MR. GANT: Well, I -

JUSTICE SOTOMAYOR: But -- so, given


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

20

Official

that statutory history, the only issue that was

left alive or was at issue in Patchak I, given

that the waiver of sovereign immunity that was

taken away tracks the APA language, the APA's

language says that a suit can be maintained

against the government, why isn't this a

sovereign immunity case?

Why am I dealing with personal

jurisdiction at all or separation-of-powers

questions at all?

MR. GANT: Because, with respect to

both the text of the Gun Lake Act, as well as

the statutory history, I submit that sovereign

immunity, the restoration of sovereign immunity

did not exist. The text nowhere mentions

sovereign immunity. If you look at -

JUSTICE SOTOMAYOR: We've never said

it had to.

MR. GANT: Well, it doesn't have to,

but there -- there are no other indicia, I

submit, that suggest -

JUSTICE SOTOMAYOR: All of the

statutory history indicia.

MR. GANT: Well -

JUSTICE SOTOMAYOR: The whole fight in


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

21

Official

Patchak I was over the existence or

non-existence of sovereign immunity.

MR. GANT: But given that, and of

course the statutory history is to some extent

in the eye of the beholder, I look at it and I

see, given the history that you've just

outlined, that if what Congress had intended to

do was to restore sovereign immunity, there

would have been more evidence of that.

It wasn't mentioned anywhere in any of

the -- the hearings. It wasn't mentioned in

the House or Senate reports. It wasn't

mentioned -

JUSTICE GINSBURG: Well, why wouldn't

-- wouldn't -- Patchak turned on this Court's

holding sovereign immunity had been waived.

And now Congress -- using the APA words, and

the APA itself doesn't say sovereign immunity,

so the APA withdrew the immunity, and this,

using the same kind of language, restores it.

Why isn't that the appropriate way to

look at this case? What did Congress want it

to do? They -- we said sovereign immunity is

waived. They said sovereign immunity is not

waived.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

22

Official

MR. GANT: I take Congress at its word

in what it intended to do, and the D.C. Circuit

said the same, which is to void the case, to

make it go away, to direct dismissal against

Patchak and for Zinke. That's what -- that's

what the statute says. That's how the D.C.

Circuit, I think, properly understood it.

JUSTICE KENNEDY: If this suit had

proceeded to a conclusion, would -- and Patchak

prevailed, would he be entitled to costs?

MR. GANT: He might be. And that's

certainly one of the things that would have -

there are a number of things that would be

addressed on remand. And for the -- the

statute, (a) and (b) are not severable. And -

JUSTICE KENNEDY: Well, I'm -- I'm

wondering if it helps your position to say that

the Congress is stripping him of certain rights

that he had because of the litigation.

MR. GANT: Well, there -- there's no

question. I mean, we'd have to go back on

remand in addressing the question of

entitlement to costs and others, the

entitlement to a declaratory judgment, the

meaning of 2(a). What Congress -


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

23

Official

JUSTICE BREYER: When -- when you say

2(a) -

MR. GANT: Yeah.

JUSTICE BREYER: -- imagine that was

the only statute. I thought your claim -- and

imagine, as well, that 2(a) is, in fact,

constitutional and Congress can say in 2017

that when we took this into federal trust

territory, Indian trust territory, that was

constitutional. That's what it does. All

right.

If that's constitutional to do that,

do you have any case left?

MR. GANT: We do. We do have a case.

JUSTICE BREYER: What's the case?

MR. GANT: Leaving aside the -- am I

assuming that it's separable?

JUSTICE BREYER: You forget -- suppose

(b) and (c) were never there. They just passed

(a).

MR. GANT: If they just passed (a), as

I -- I think I mentioned this earlier in

response to another question, we would not be

arguing -

JUSTICE BREYER: I realize that, but


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

24

Official

my question is: Would your client have a

lawsuit? What would be the basis for it?

Because I thought his basis was that the taking

of the land into trust was not lawful under a

particular act because that just referred to

tribes that were tribes in the '30s. Right?

MR. GANT: Yeah.

JUSTICE BREYER: Now, this act says we

don't give a -- we don't care about that; we

say that the government had the power to take

it into trust anyway. And it had that power to

take it into trust when it did. All right?

So, if that's the law, what is your

client suing about?

MR. GANT: Well -

JUSTICE BREYER: How can he win?

MR. GANT: For purposes of your

question, I'm presupposing that that's the law.

JUSTICE BREYER: Yeah.

MR. GANT: But one thing that happened

here is we -- no court could make that

determination.

JUSTICE BREYER: No, no, but what's

your argument?

MR. GANT: The argument -- the


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

25

Official

argument is that -- well, we would argue that

it's not retroactive. We would argue -

JUSTICE BREYER: It says -- it says

ratified.

MR. GANT: I -- I understand. But I

-- I -- we haven't briefed this, but I submit

that there is an argument, a colorable

argument, to be made that ratification is in a

sense an endorsement -- if you look at -- on

page 2 of the -

JUSTICE BREYER: All right. So your

argument is that (a) applies only to taking

into trust after the passage of the act -- the

(a), after the passage of (a)?

MR. GANT: Yes.

JUSTICE BREYER: In other words, it

doesn't ratify the prior taking into trust of

Indian land?

MR. GANT: That is an argument. There

was an argument made below about the meaning of

(a) before the district court when this was -

JUSTICE BREYER: Okay. That's your

best argument?

MR. GANT: No, no, it's not. It is

not. There was an argument made below that the


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

Official

-- the ratification talks about taking the land

into trust. But that doesn't mean that it

authorizes all uses of the property. So

there's a distinction between the land being

into trust and -

JUSTICE BREYER: Okay. Okay. Okay.

Okay, I've got it.

MR. GANT: -- there are -

JUSTICE BREYER: Got it, got it.

MR. GANT: -- there are --- there are

others.

JUSTICE KAGAN: Mr. Gant, could I -

I'm sorry to drag you around like this, but the

Chief Justice asked you a question and you

indicated that you agreed with his

understanding of when a jurisdictional statute

violated the Constitution, and -- and then you

were interrupted.

I just want to hear a little bit more

about what you think of his question.

MR. GANT: Sure. I hope I have it

firmly in mind. And at the same time, I want

to try and answer your -- some of your prior

questions and the question -

JUSTICE BREYER: There's also the


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

27

Official

parties' side.

JUSTICE KAGAN: Well, I'm interested

in that question, the Chief Justice's question,

because he gave you a theory; you said yes.

MR. GANT: Okay.

JUSTICE KAGAN: But what does that

mean, "yes"? Yes why?

MR. GANT: What Congress cannot do is

direct the outcomes of a case even under the

guise of jurisdiction. Let's go back to the

"Smith wins" hypothetical from Bank Markazi.

If -- if -

JUSTICE ALITO: But I -- I thought the

Chief Justice's examples were instances in

which a hypothetical statute deprived the

federal court of the opportunity to rule on

violations of -- on constitutional -- alleged

constitutional violations, the same as the

question that Justice Ginsburg gave to you,

taking away jurisdiction over cases involving

prayer in the schools or jurisdiction over

equal protection violations, but this is a

statutory case.

MR. GANT: It is, although it has -

because there were -- the Court in Patchak I


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

28

Official

addressed standing and sovereign immunity,

which at least have constitutional dimensions,

but there's no doubt about the fact that the

underlying claims at issue in the pending

complaint that's still operative are statutory

in nature. The only thing I think -

JUSTICE BREYER: So why don't you

bring your case in state court? It doesn't say

the state court doesn't have a -- I mean, yeah,

bring it in state court.

MR. GANT: I would have to think about

whether we could do that.

JUSTICE BREYER: Why?

CHIEF JUSTICE ROBERTS: Well, can the

tribe be sued in state court?

JUSTICE BREYER: Yeah, general

jurisdiction.

CHIEF JUSTICE ROBERTS: Can the

federal government be sued in state court?

JUSTICE BREYER: You can. Yeah.

CHIEF JUSTICE ROBERTS: I'm asking

you.

(Laughter.)

MR. GANT: I don't want to get in the

way of a good discussion.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

29

Official

-

(Laughter.)

MR. GANT: I honestly don't know the

-

CHIEF JUSTICE ROBERTS: But I suppose

MR. GANT: -- I don't know the answer.

CHIEF JUSTICE ROBERTS: -- I suppose

the question is, I mean, just as in a case of

-- the antibusing cases, there's a

constitutional violation that Congress is

trying to insulate from review, and that's the

separation-of-powers claim.

MR. GANT: And I took your question to

be that these were -- not that these were

identical situations, this case and -- and the

situations that Mr. Chief Justice posited, but

that they were close cousins.

And to go back to a question to try

and more directly answer your question, Justice

Gorsuch -- and I want to do save a few moments

for rebuttal -- if a statute said we think

Smith should win and, therefore, we -- we

determine that the courts shall not have

jurisdiction, that can't -- the fact that it

says it's jurisdictional cannot possibly save


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

30

Official

it from a separation-of-powers scrutiny and

analysis.

And this is substantially similar to

that situation.

JUSTICE KAGAN: So why -- why is it

substantially similar to that situation? That

makes it sound like it's because it's about a

single case, but you said that that wasn't your

theory. So what is your theory?

MR. GANT: Right. We could change it

to -- to 10 Smiths win or in every case of

Smith v. Jones. It's not the number. It's the

fact that Congress is directing the outcome and

it's saying that you win not because we've

changed the law, and notwithstanding old law

because we know two things about the old law -

JUSTICE KAGAN: But doesn't Congress

always do that when it strips the federal

courts of jurisdiction over a category of

cases?

MR. GANT: No.

JUSTICE KAGAN: Because we have said

that that applies to pending suits. So I guess

the question is: Why aren't you saying that

every time we said that, we were wrong; that


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

31

Official

any time Congress changes the jurisdiction of

the federal court and then applies to pending

cases, that that's a separation-of-powers

issue?

MR. GANT: Because Shore and the other

separation-of-powers cases of this Court

counsel that we should take a functional,

practical look at the particulars of the case.

And in this case, unlike these hypothetical

statutes, you have Congress clearly directing

the outcome of the case where, under old law,

this Court held that this case may proceed.

The House report at page 2 said, under existing

law, the -- putting the land into trust was

likely unlawful.

And the only thing that changed was

Congress said this case goes away, period.

JUSTICE ALITO: I mean, it sounds like

this is just based on your -- your analysis of

Congress's intent.

MR. GANT: No, I -- it's not.

JUSTICE ALITO: Let's take a case that

we -- we had earlier this term under the Alien

Tort Statute. I don't know whether you're

familiar with it. But it provides jurisdiction


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

32

Official

in the federal courts for a suit by an alien

concerning certain torts. And we have the

question whether a -- a corporation can be

sued.

Suppose Congress were to pass a

statute that says that no federal court shall

have jurisdiction of an Alien Tort Statute suit

where the defendant is a corporation. There

are a limited number of cases involving that,

pending cases. Would that be unconstitutional?

MR. GANT: We'd have to look at the

particulars of the case and make a judgment

based on the case whether Congress was

directing the outcome of particular cases or

was it functioning more in a legislative role.

JUSTICE KAGAN: Well, it's certain -

I'm sorry. Your light's on. Fine.

MR. GANT: Well, I'm here for you, but

I would like to reserve -

(Laughter.)

MR. GANT: I would like to reserve a

few moments for rebuttal, but I -- but -

CHIEF JUSTICE ROBERTS: Well, why

don't you answer the -- ask and then answer the

question, and we'll afford you time for


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

33

Official

rebuttal.

MR. GANT: Thank you, Mr. Chief

Justice.

JUSTICE KAGAN: I was just following

up on Justice Alito's because you -- you say

directing the outcome of these cases, but any

time Congress jurisdiction strips, and that

applies to pending cases, it does direct the

outcome of those cases. Once upon a time those

cases could proceed. Now they can't.

So Congress is directing the outcome

of those cases in some sense that we've

consistently held to be perfectly fine. We

might have been wrong in saying that's

perfectly fine, but we've said it a lot of

times.

MR. GANT: Right. And this may be an

example of what the Court has talked about in

other contexts where line-drawing can be hard.

Again, I'd step back and look at -- ask the

fundamental questions.

Is -- has the legislature overstepped

its bounds, traversed the boundary between the

legislative function and the judicial function

in deciding how cases should be determined?


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

34

Official

Congress is entitled to try and affect the

outcomes, but the process of how it does it

very much matters.

And this is about as an egregious

circumstance as I can imagine of Congress

actually dictating the outcome of a case by

saying you shall -- must dismiss without

changing the underlying law and leaving it to

the courts to apply in future circumstances.

Thank you, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Thank you,

counsel.

Ms. O'Connell.

ORAL ARGUMENT OF ANN O'CONNELL

ON BEHALF OF THE FEDERAL RESPONDENTS

MS. O'CONNELL: Mr. Chief Justice, and

may it please the Court:

The United States took title to the

Bradley Property in 2009, but the tribe's

operations on that land have been subject to

great uncertainty ever since then nevertheless.

Part of that uncertainty stems from

this Court's decision in Patchak I, which

interpreted the laws enacted by Congress up to

that point and concluded that the Quiet Title


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

35

Official

Act did not bar Petitioner's challenge to the

trust status of this land.

The Court acknowledged in Patchak I

that barring claims like Petitioner's is within

Congress's legislative power. Through the Gun

Lake Act, Congress did a couple of things. It

eliminated any doubt about the trust status of

this land by ratifying and confirming the

Secretary's action in 2005.

And Congress also eliminated federal

court jurisdiction over challenges to the trust

status of this property, thereby revoking the

waiver of sovereign immunity in the APA.

JUSTICE KENNEDY: Suppose that Patchak

had relied on his interpretation of the law and

had built a facility on a neighboring property

that was just completely inconsistent with a

casino, so that he's -- has some -- some

serious reliance interests.

Would -- would this case be any

different?

MS. O'CONNELL: Well, there -- there

could be other constitutional concerns that may

be implicated by Congress -- by an act of

Congress that takes away vested property rights


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

36

Official

or something like that, but they're -- they're

not Article III interests.

I don't think that it would violate

the separation of powers for Congress to enact

a law that -

JUSTICE KENNEDY: Well, they're taking

away his expectations when he built on the

property.

MS. O'CONNELL: Well, then maybe -

JUSTICE KENNEDY: In the hypothetical

case, hypothetical.

MS. O'CONNELL: He may be able to

bring some other sort of a challenge like a

takings challenge or something like that. I

mean, this Court in Bank Markazi -

JUSTICE KENNEDY: But Congress could

still pass this statute?

MS. O'CONNELL: Yes. And, you know,

the Court explained in Bank Markazi there are

other limits imposed in the Constitution on

retroactive application of laws. And so

perhaps if there was some kind of a takings

claim, then regardless of Section 2(b), the -

the Petitioner could bring some sort of a suit

to -


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

37

Official

JUSTICE BREYER: Maybe he has -- this

might be his best argument, that this

ratification business is not, in certain

respects, retroactive.

Can he bring this case in state court

against the Secretary?

MS. O'CONNELL: No. The Secretary -

JUSTICE BREYER: No. Okay. The

answer is no.

MS. O'CONNELL: Well, he could bring

it, but the Secretary would still have immunity

in state court as for the trial.

JUSTICE BREYER: Okay. Has immunity

in state court, so you can't bring it. So he

has, let's imagine, under state law a right to

the peaceful enjoyment of his property. That's

what he's worried about.

Now, this (b) means -- his best claim,

he thinks, is not a constitutional claim that

they've taken it away, but he sees that in the

background.

His best claim, he thinks, is to say

that this law is not retroactive, and that in

the 1930s this tribe did not get -- was not one

of the ones that that Act protected.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

38

Official

That's his argument. With (b), he

cannot bring his claim in a state court. He

cannot bring his claim in federal court. And

there's no other person anywhere who even is

dreaming of such a claim.

And, therefore, what (b), he says,

does, as I understand it, is whatever general

language they dress it up in, it is taking the

only case that is likely to be brought,

challenging the taking of this land into trust

and challenging this later statute as well as

being interpreted, you know, such and such, and

throwing it out of court.

So there we have, though they have

excellent language and have tried to make it

general, in reality an act of Congress that

does nothing other than take his case and throw

it out of court. And that, he says, is for the

Congress, the legislative branch, to enter into

the judicial process and say: Mr. Plaintiff,

in this case you lose.

Now, what is your answer to that?

MS. O'CONNELL: I've got a couple of

answers to -- specifically to the second part.

On the first part, I don't know if in this case


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

39

Official

you're talking about some sort of a

hypothetical relief that he's asking for.

Regardless of whether this is a -- a statute

that's retroactive or not in terms of taking

the land into trust -

JUSTICE BREYER: It's not retroactive.

That's why I asked him the question.

MS. O'CONNELL: He -- he's -

JUSTICE BREYER: I take -- I take his

answer to my question was he retains certain

arguments that (a) is not sufficient to deprive

him of the right to use his property because

(a) does not move this tribe's land into trust

as of -- prior to its enactment.

MS. O'CONNELL: His -

JUSTICE BREYER: I think it's

something like that.

MS. O'CONNELL: The -- just to

clarify, the -- he's filed an APA claim. So

the relief he is asking for is prospective

injunctive relief. There doesn't -- it doesn't

actually matter if the statute is retroactive

or not.

But to answer the question about

whether the Congress is targeting one


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

40

Official

particular lawsuit in this case, a couple of

responses: First is that this statute,

although that seems to the Petitioner, and it

may be the practical effect, that because his

is the only case that's pending, it's the only

one that is dismissed, this is not a statute

that is directed toward just Smith v. Jones,

Smith wins. This is a case that applies to any

suit related to -

JUSTICE KAGAN: Well, what if it were?

What -- what if they -- the Congress had said

the Secretary's decision to make the Bradley

Property is confirmed, and David Patchak's suit

shall not be maintained and shall be dismissed.

MS. O'CONNELL: I -- I don't think

there is an Article III problem with a case

that takes away jurisdiction over even just one

case. It may have other constitutional

concerns. Footnote 27 of Bank Markazi said

maybe you could look to the equal protection

clause, if it's just a statute that targets one

person and it's irrational, there's no rational

basis for it, but we don't see any

separation-of-powers problem with taking

jurisdiction over -


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

41

Official

CHIEF JUSTICE ROBERTS: Well -

MS. O'CONNELL: -- away over only just

one case.

JUSTICE SOTOMAYOR: I'm sorry.

CHIEF JUSTICE ROBERTS: -- in that -

in that case, is -- does the government

recognize any limit on Congress's power to

decide the result in a pending case?

MS. O'CONNELL: To decide the result

in a pending case, yes. If the -

CHIEF JUSTICE ROBERTS: What is it?

If saying Smith wins, isn't that -- what would

an unconstitutional statute under the

separation of powers look like from your

viewpoint?

MS. O'CONNELL: Well, certainly Smith

wins would be an unconstitutional statute

because in that case Congress is just directing

the results of a case without changing the

underlying law. And I think -

JUSTICE KAGAN: Well, what's the

difference between -

CHIEF JUSTICE ROBERTS: And -- and so

we should -- so we should look at this and

decide whether we think this is in substance


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

42

Official

different from Smith wins?

MS. O'CONNELL: I think that would be

a perfectly fine way to do it. And I think

this case is different from Smith wins in a

variety of different ways.

JUSTICE KAGAN: Is there a difference

between Smith wins and there's no jurisdiction

over Jones's suit?

MS. O'CONNELL: Yes.

JUSTICE KAGAN: And, therefore, Smith

wins?

MS. O'CONNELL: Yes. I think that

that is one of the differences between Smith

wins and the -- and the statute that's going on

here, even if you think -- even if you imagine

a hypothetical statute that's just limited to

Smith v. Jones, and, again, this Court is -

this statute is broader than that.

CHIEF JUSTICE ROBERTS: So Congress

has plenary authority to insulate itself from

separation-of-powers arguments. They -- a

statute that says in any case in which a

statute is alleged to violate the separation of

powers, federal courts have no jurisdiction.

You think that's okay?


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

43

Official

MS. O'CONNELL: No. I -

CHIEF JUSTICE ROBERTS: Why not?

MS. O'CONNELL: And we haven't

contested in this case that the Court can

analyze 2(b) to determine whether it violates

the separation of powers. That's what the

whole case is about. Congress has -- has not

insulated 2(b) from that review and they're -

Petitioner is bringing a constitutional

challenge to Section 2(b).

I think one of the -- another one of

the key -

JUSTICE GORSUCH: Well, Ms. O'Connell,

it seems to me like a lot hinges on whether

this is jurisdictional or not in response to

all of these questions.

And this Court in recent years has

instructed that we're not going to lightly

assume Congress is stripping jurisdiction. We

need a clear statement, Arbaugh, Sebelius, and

whatever might have been permissible before,

Congress is now on notice that it needs to

provide a clear rule. And this statute comes

after those warnings from this Court.

And help me understand why this


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

44

Official

statute is, in fact, jurisdiction-stripping

without reference to old past laws but after

Sebelius, after Arbaugh?

MS. O'CONNELL: Well, I think -

there's two cases we've cited that show that

this is jurisdictional language. One of them I

won't use to answer your question -

JUSTICE GORSUCH: Right. You can't.

Right.

MS. O'CONNELL: -- because it's

older. Keene.

JUSTICE GORSUCH: Keene. Right.

MS. O'CONNELL: But I think Gonzalez

versus Thaler is another -- another opinion

where this Court took some language that's

similar. We think it's like the appellate

court equivalent.

JUSTICE GORSUCH: But you've also got

Reed Elsevier, which has similar language to

this. No -- basically, no claim shall be

maintained, or something like that, that we

held wasn't jurisdictional, in the copyright

statute.

MS. O'CONNELL: In this statute, we

think there's -- there's a lot of different


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

45

Official

things at play that make it a jurisdictional

statute, one being that it says a case can't be

filed or maintained in federal court. If it

just says it can't be maintained, maybe that

could be something different, but if it's -- it

can't be filed even in the first place, that

speaks to jurisdictional terms.

JUSTICE GORSUCH: Parties file things.

That could be a claims processing rule too.

Right? You don't file it.

MS. O'CONNELL: Well, although this -

I mean, so those are the two cases that

Petitioner cites in his opening brief. One is

Sebelius, which is the claims processing rule,

and then Arbaugh, which is the -- the elements

of a cause of action.

JUSTICE GORSUCH: Let's say -- let's

say it isn't jurisdictional. Let's say -

let's say we're going to stick with our clear

statement rule and that we find this

non-jurisdictional. Don't we then have a real

problem because a dismissal would be not

12(b)(1) but 12(b)(6), it would be on the

merits and have collateral consequences?

And wouldn't that be a real problem


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

46

Official

for Article III?

MS. O'CONNELL: A -- a couple of

responses. I think the -- requiring the

jurisdictional clear statement rule in this

case flips the constitutional -

JUSTICE GORSUCH: I'm asking -- I'm

asking you to put that aside in this question.

MS. O'CONNELL: Well, I think the

Court would -- would want to invoke the

constitutional avoidance principle to -

JUSTICE GORSUCH: I'm asking you to -

again, assuming this isn't jurisdictional, for

purposes of this question, wouldn't we have a

real problem because you are directing

dismissal and dismissal wouldn't be 12(b)(1),

it would be 12(b)(6), and that has collateral

consequences potentially.

MS. O'CONNELL: If -- if the Court

concluded that -- that Congress was just

telling the Court that it had to dismiss this

case on the merits, then -- then, yes, I think

that may be a problem, but even if the Court

doesn't think that -- I mean, even if you don't

use jurisdictional language or you think that

the statute may not be taking away jurisdiction


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

47

Official

over a category of cases, which we think it is,

I'd like to come back to the sovereign immunity

point, which is that, you know, the APA

provides the waiver of sovereign immunity, and

that's the statute that the Petitioner has sued

under.

The APA doesn't apply if another

statute precludes judicial review.

CHIEF JUSTICE ROBERTS: Sovereign

immunity is -

JUSTICE GINSBURG: Can I ask you a

question about the -- the APA? The argument

that has been raised on the other side is it

doesn't -- you don't need sovereign immunity

waiver because sovereign immunity doesn't

protect a federal employee from a suit alleging

that that employee acted in excess of statutory

authority.

So, I mean, what -- what I suggested

in the first part of this argument was we held

there is sovereign -- there -- sovereign

immunity is not a bar. Congress says sovereign

immunity is a bar. But the answer to that is,

so what? We can sue a federal officer and

sovereign immunity wouldn't bar that.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

48

Official

MS. O'CONNELL: Justice Ginsburg, I

think this Court's decision in Block versus

North Dakota goes a long way to answering that

question. In Block, the state was suing -

bringing an officer suit because it was outside

of the statute of limitations in the Quiet

Title Act. What the Court said was you can't

just use an officer suit to get around the

Quiet Title Act; now that we have Congress's

waiver of sovereign immunity in the Quiet Title

Act, you have to comply with those statutory

provisions. The same should be true of the

APA.

So if -- if Petitioner could -- could

just bring an officer suit against Secretary

Zinke for prospective injunctive relief, that

would vitiate the final agency action

requirement of the APA, the statute of

limitations of the APA. Congress has given us

its waiver of sovereign immunity in the APA,

and when it enacts a statute like this, it has

revoked it.

CHIEF JUSTICE ROBERTS: It -

JUSTICE SOTOMAYOR: Can you tell me

what other actions in your judgment, besides


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

49

Official

this one, could be or would be filed relating

to the land? Would a slip-and-fall no longer

be permissible?

MS. O'CONNELL: So I think there are

some questions about just how broad this

statute is. We think it -- it at least covers

suits that relate to the trust status of the

Bradley Property or the -- the Secretary's

decision and Congress's decision to take it

into trust. But -

JUSTICE SOTOMAYOR: But any suit like

that would be way past the statute of

limitations. Who -- who could even bring it?

MS. O'CONNELL: Well, I -- it may be

outside the statute of limitations now. I

believe there was a -- a regulation passed

later in time that made the -- the land a part

of the tribe's reservation, which I guess

there's questions about whether that could

restart the statute of limitations, but, you

know, now -- and also Congress has enacted 2(a)

now.

And so, if somebody wanted to bring a

challenge to that, then that would also be

barred by 2(b) and it would -


1

2

3

4

5

6

7

8

9

10

11

12

13

14

supreme court of the united states · 2017. 11. 22. · supreme court of the united states in the...

Documents